Subject: RE: Patent-based dual-licensing open source business model
From: simo <s@ssimo.org>
Date: Wed, 13 Sep 2006 18:11:07 -0400

On Wed, 2006-09-13 at 14:36 -0700, Lawrence Rosen wrote:
> But there is a more subtle legal issue implied in your question. If a
> company tells its customers to buy its hardware, then tells them to
> separately download specific patented open source software in order to avoid
> paying royalties, I think the hardware vendor would leave itself open to
> charges of contributory or inducing infringement. Our Covenant doesn't
> protect hardware vendors from this.

Even if the company is not distributing the software itself?

> I'm trying in these discussions to make it clearer. The input you and others
> are providing is helpful. I do suggest that (1) open source projects ought
> not to worry their pretty little butts about such things, and (2) the
> companies that make commercial products have plenty of lawyers to analyze
> such questions. I can assure you that these are much easier questions than
> those associated with derivative works and the GPL. EVERY reputable company
> that sells such products in commerce now knows how to deal with patents;
> they do it every day.

You are assuming all companies are big sized companies with enough money
to have lawyers on a regular payroll. But SMEs are completely cut off at
this point, the risk are too high, and the cost of legal consultation
too. Nut this is probably ok for you, patents are usually a way to
create barriers against small companies anyway.

> I don't call our Covenant free, since I see no reason to adopt a free
> software definition designed for copyright law that fails to account for the
> value of patented software in commercial products. We adopt the existing
> definitions only to the extent that you can implement our patents for free
> in free [i.e., open source] software.

The problem is that you claim or imply the Covenant is compatible with
Free Software Licenses. It is probably compatible with non-copyleft
licenses, but it is probably not compatible with strong copyleft
licenses like the GNU GPL.

> Here's how we define "open source software":
> 
>    The term "open source software" in this covenant shall mean 
>    software actually distributed to the public under software 
>    licenses that have been expressly approved by Open Source 
>    Initiative or the Free Software Foundation as of the date 
>    of this covenant, and that provide that every licensee is 
>    free to make copies of the software or derivative works 
>    thereof, to distribute them without payment of royalties 
>    or other consideration, and to access and use the complete 
>    source code of the software.

In this definition you say: "distribute them without payment of
royalties", but then you require royalties if you distribute the program
embedded in hardware. There is a contradiction.

> That may not agree completely with others' definitions (although, except for
> the phrase "actually distributed to the public" it probably does agree), or
> their interpretations of their own definitions, nor are their licenses
> necessarily consistent with our Covenant, but we have to build a profitable
> business here consistent with our philosophical goals of promoting the
> development of technical innovation. Please note from the paper I posted
> that our objectives are much broader than just free software. Giving patents
> away for free for commercial uses is no way to start that off.

So you are not even considering a Covenant that covers only embodiment
in non free software?

Simo.